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BB Gun Evidence Tossed Due to Illegal Search

Last week the Toronto Star’s Betsy Powell reported on a case where a man found carrying a concealed BB gun had the evidence of the gun tossed due to being searched illegally, in breach of his rights under the Canadian Charter of Rights and Freedoms.  In the decision Justice Diane Oleskiw found that rights violated included arbitrary detention, an unauthorized search, rights to counsel, and failing to provide him for the reasons for arrest.

The facts, as stated by Justice Oleskiw and reported by Powell, appear quite simple.  The young man charged was standing outside a strip mall with some friends and appeared to be behaving in a manner of concern to police officers.  While the man’s friends ran off the accused man was questioned, appeared to police to be nervous, was investigated and found to have an outstanding fraud charge, and was subsequently patted down for “officer safety” reasons.  In the search the BB gun was found.

The problem is it was unclear why the man was investigated in the first place.  Justice Oleskiw held that the police “were suspicious of some kind of criminal activity, but they could not say what kind of criminal activity or that the suspicion was directed at any particular offence”.  Her Honour went on to explain that “people of different ethnicities sometimes dress in heavy clothing during warm weather, and young black males are sometimes nervous around police officers”.  The evidence of the BB gun was ultimately tossed.

These types of facts really bother me.  Individuals should be able to go about their business without being investigated by police when they aren’t seen to be committing any illegal acts.  The suspicion or hunch of a police officer really shouldn’t be enough for questioning (it is worth noting that there is zero obligation to answer any questions in such a situation) let alone a search.  Similarly, an outstanding charge should not give the police carte blanche authority to search someone.

I expect many people will disagree with this decision on the basis that, while Charter rights should be protected, the accused man still had a BB gun and this fact cannot be ignored.  To me, the only way to ensure that Charter Rights are protected for everyone is that they be protected for those who are found to have committed a crime.  Otherwise what motivation would police have to uphold Charter rights at all?

I suspect similar situations, where individuals are questioned and searched based on mere suspcision, occur on a daily basis.  When no charges are laid, then absent a civil claim or police complaint, there really is no remedy for the breach.  The police officers who breach one’s rights when no charges are laid are rarely held accountable.

This blog post was written by lawyer Adam Goodman.  Adam is a criminal lawyer in Toronto who blogs regularly about legal subjects.  Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.